Sexual Harassment in the Workplace: What Do the New 2023 Rules Say?
The Biden administration has announced new rules to prevent sexual harassment in the workplace. Two important examples are rules governing health care and education jobs.
New Health Care Rules
The U.S. Department of Health and Human Services has a role to play in preventing harassment on several parts of a person’s personal identity in the workplace. It has recently announced an expansion in how it bans discrimination in any program or activity receiving federal funding for health or human services, which are many, many hospitals, clinics, schools, and other activities.
A new rule prohibits against discrimination on the basis of sex, sexual orientation, and gender identity in health care under Section 1557 of the Affordable Care Act. This rule pushes back on the Trump administration’s effort to deny discrimination protections to persons with diverse gender identity and status as a person who has terminated a pregnancy.
Another HHS policy restricts misgendering. The HHS proposed to treat the intentional and repeated use of a pre-transition name (dead name) or pronoun for a person undergoing or who has completed a gender transition as part of an unlawful hostile work environment.
The White House Task Force to Address Online Harassment and Abuse may announce further policies to increase remedies for harassment and support survivors of it.
New Federal Education Rules
The Department of Education has rules against discrimination in the access to federally funded colleges or universities on the basis of sex, sexual orientation, or gender identity. The Biden administration under Secretary of Education Dr. Miguel Cardona proposes to expand the definition of sexual harassment to include any conduct that creates a hostile environment for students, not just conduct that is severe, pervasive, and objectively offensive. Currently, student-on-student sexual or sexual orientation harassment must be not only offensive and objectionable, and derogatory or demeaning on the basis of a protected ground like sex or gender/sexual orientation, and “so severe, pervasive, and objectively offensive that it can be said to deprive the victim of access to the educational opportunities or benefits provided by the school.”
Even online social media activity or off-campus harassment on the basis of sex or sexual orientation may be covered by these new rules. Students who identify as LGBTQ+ can make reports of prohibited discrimination or harassment just like women in sex bias cases. This is part of President Joe Biden’s attempt to fulfill a campaign promise of “bold” action against harassment.
New York Rules
In 2021, Governor Kathy Hochul announced new rules guarding against harassment of state employees. She noted that new online tools and increased training activities would help employees and employers prevent prohibited harassment.
New York law against sexual harassment prevention covers sexual orientation and gender identity, like federal law. Protections in New York may reach biased or derogatory comments or discriminatory conduct or failures to act that make the working environment hostile to women, persons attracted to members of the same sex, or persons identifying with a gender that is not traditionally associated with their sex at birth.
Prior to the Hochul reforms, many cases of sexual harassment were reported in state agencies, causing the state to arrive at millions of dollars in settlement with accusers. In 2023, New York employers, including state agencies, are supposed to announce and implement sexual harassment prevention policies, such as the model policy of the New York State Department of Labor.
Sexual Harassment in the Workplace, on Campus, or in Health Care Facilities
Federal law defines sexual harassment in at least two ways.
One way is a prohibited quid pro quo. In this definition, someone at an employer, on campus, in a hospital or clinic, or in a housing environment demands sexual favors or improper contact in exchange for accessing some benefit such as a new job, continued employment, a raise or better treatment at work, a reduction in rent, a new lease or lease extension, or some aspect of health care including those related to mental health or substance abuse treatment.
Another way is a hostile work environment. This may be verbal or physical in nature, or completed online by email, direct message, or social media post. The act must tend to interfere too much with an employee’s ability to work or transform the workplace or campus into a fearful, unwelcoming, or hurtful atmosphere. New York State Human Rights Law, New York City law, and the New York State Division of Human Rights, New York Rulings on Pre-Employment Inquiries include aspects of this definition. New York State and New York City law goes even further than federal or state law sometimes, to define as harassment being treated poorly due to not cooperating with sexual contact or requests, whether or not the request or the offensive comments are “severe” or happen multiple times.
Employees can file suit against sexual harassment in appropriate cases. The lawsuit can be against someone’s direct employer or another company that shares control over conditions in the workplace, known as a joint employer. For example, Wal-Mart might be a joint employer of store cleaners who theoretically work for a contractor or vendor of cleaning services.
Federal law requires employees who want to sue under federal law to file a notice of harassment or discrimination with the Equal Employment Opportunity Commission. Once this office sends a “Right to Sue Letter,” an employee can sue for monetary compensation in court.
Under state law, a right to sue letter may not be required. An employee can sue in federal court or proceed before the New York State Division of Human Rights or New York City Commission on Human Rights under the Executive Law § 296 and New York Administrative Code § 8-107.
It is important to know your rights when it comes to sexual harassment and retaliation for making complaints. A free consultation can help you understand your rights and take action to protect them.
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